Excerpt:.....of approbation and reprobation fully applies to the facts of the present case by reasons of the present plaintiffs having defeated the earlier suits of the defendants on the plea that the defendants were tenants of the land in dispute. 5. after hearing the learned counsel for the appellants, i am clearly of the view that there is no merit whatever in this contention. i am, therefore, clearly of the view that neither on principle nor on authority the contention of mr. the courts below have come to the conclusion that the admission was erroneous as well as it has been fully explained away and therefore, it is not binding on the present plaintiffs. gopal vinayak, air 1960 sc 100, an admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive..........following five issues were framed by the trial court:--1. are the plaintiffs not the owners of the suit land?2. whether the defence taken by the defendant regarding adverse possession and their being tenants and plaintiffs being owners is not res judicata?3. issue no. 1 is found in favour of the defendants, hence the defendants become owner of the suit land by adverse possession.4. if issue no. 2 is found in favour of the defendant, are they tenants of the suit land?5. is the suit barred by time?all the issues were found against the defendants and the plaintiffs' suit for possession was decreed. an appeal by the defendants in each of the suits has also met with no success. the lower appellate court has affirmed the decision of the trial court. the defendants have come up in second appeal.....

Judgment:

D.K. Mahajan, J.

1. This order will dispose of Regular Second Appeals Nos. 117 to 124 of 1966. The respondents are the same in all the cases, the appellants are different persons.

2. The appellants in the year 1962 filed separate suits against the respondents for a declaration that they were the owners of the land in dispute by adverse possession. These suits were contested by the present respondents. They raised the plea that the plaintiffs in those suits were tenants and, therefore, their possession was permissive and there was no question of their becoming the owners by adverse possession. The suits ultimately failed on the ground that the plaintiffs had failed to prove that they had become owners by adverse possession of the land in dispute. It may be mentioned that there was no issue framed in these suits as to whether the plaintiffs were tenants of the defendants, the present respondents.

3. The present suits out of which these eight Second Appeals have arisen were filed by the then defendants in the earlier suits for possession of the land on the ground that the defendants were trespassers and not entitled to hold possession of the land. The defendants raised the plea that they were the tenants of the land in dispute and in any case, the plaintiffs were estopped from contending that the defendants were not tenants of the land in dispute. It may also be mentioned that the defendants raised the plea that the plaintiffs were not the owners of the land in dispute and they claimed title to the land by adverse possession. On the pleadings of the parties, the following five issues were framed by the trial Court:--

1. Are the plaintiffs not the owners of the suit land?

2. Whether the defence taken by the defendant regarding adverse possession and their being tenants and plaintiffs being owners is not res judicata?

3. Issue No. 1 is found in favour of the defendants, hence the defendants become owner of the suit land by adverse possession.

4. If issue No. 2 is found in favour of the defendant, are they tenants of the suit land?

5. Is the suit barred by time?

All the issues were found against the defendants and the plaintiffs' suit for possession was decreed. An appeal by the defendants in each of the suits has also met with no success. The lower appellate Court has affirmed the decision of the trial Court. The defendants have come up in Second Appeal to this Court.

4. The first contention of Mr. Nehra, learned counsel for the appellants is that the plaintiffs are debarred from contending that the defendants are not the tenants of the plaintiffs. According to the learned counsel, the rule of approbation and reprobation fully applies to the facts of the present case by reasons of the present plaintiffs having defeated the earlier suits of the defendants on the plea that the defendants were tenants of the land in dispute. For his contention, the learned counsel relies upon the following decisions:--

After hearing the learned counsel for the appellants, I am clearly of the view that there is no merit whatever in this contention. As a matter of fact the decision of the Supreme Court really goes dead against the contention of the learned counsel. While dealing with the facts of that particular case, their Lordships of the Supreme Court observed as follows:--

'The plaintiff obtained no advantage against the appellants by pleading in O. S. No. 92 of 1938-39 that the proceedings in O. S. No. 100 of 1919-20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties. Nor is there any question of election, because the only relief which the plaintiff claimed in O. S. No. 92 of 1938-39 and which he now claims is that he is entitled to the suit properties. Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the principle of election does not forbid it, and there being no question of estoppel, the plea that the proceedings in O. S. No. 100 of 1919-20 are not collusive is open to the plaintiff.'

As I understand the rule of approbation and reprobation as enunciated by their Lordships of the Supreme Court, it means that before the doctrine will apply there has to be estoppel in one form or the other. If there is no estoppel there would be no question of the rule coming into operation and this is borne by all the authorities that have been cited by Mr. Nehra in support of his case. In each one of the cases there was estoppel in one form or the other and it is only thereafter that the rule was applied to non-suit the plaintiff.

In the present case when the earlier suit was filed, nothing that was done by the present plaintiffs and the then defendants made the plaintiffs alter their position in any manner. It is no doubt true that by pleading that the possession of the then plaintiffs was permissive they succeeded in defeating the suits but all the same the plaintiffs claimed that they were the owners of the property in dispute and that is the claim which they are now making. Therefore, it is not correct to say that the plaintiffs derived any benefit by the previous litigation. As a matter of fact a cloud on their title was got cleared. If at all, it is the present defendants who are to blame for the mess in which they have landed themselves. I am, therefore, clearly of the view that neither on principle nor on authority the contention of Mr. Nehra can succeed and I accordingly repel the same.

5. Mr. Nehra then sought to urge that the admission in the previous suit made by the present plaintiffs is binding on them. The admission was that the present defendants were their tenants and therefore it is urged that the plaintiffs' suit should have been dismissed. The courts below have come to the conclusion that the admission was erroneous as well as it has been fully explained away and therefore, it is not binding on the present plaintiffs. In the first instance, this is a pure finding of fact and is binding on me in second appeal. In the second instance, as observed by their Lordships of the Supreme Court in Narayan Bhagwantrao v. Gopal Vinayak, AIR 1960 SC 100, 'an admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter', unless successfully withdrawn or proved erroneous.' In the present ease both the Courts below have come to a concurrent decision that the admission was erroneous and in any case it has been successfully withdrawn in the present case. Therefore, no foundation can be built on such an admission by the defendants to defeat the plaintiffs' suits. As a matter of fact the plea that the defendants are the tenants of the plaintiffs is not open to them because in the earlier litigation they took up a clear stand that they were the owners of the land in dispute by adverse possession. If at all the rule of estoppel would surely apply so far as the defendants are concerned.

6. Mr. Nehra then sought to contend that the defendants had established on the present record that they were the tenants of the land in dispute. Again on this matter there is a concurrent decision on a question of fact by the courts below which is binding on me in second appeal. Moreover, there is no evidence that any rent was being paid by the defendants to the plaintiffs. As a matter of fact the entry is that they are paying no rent because of assertion of ownership. Therefore, the documentary evidence clearly shows that the entry that the tenants are non-occupancy tenants is clearly erroneous. It is well known that the revenue authorities when they find a person in possession of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not.

Non-payment of rent negatives existence of relationship of landlord and tenant. This was so held in Kanwar Ammar Ahmed Khan v. Union of India, 1954-56 Pun LR 468: (AIR 1955 Punj 37):--

'The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the. possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship.'

7. For the reasons recorded above, I see no force in any one of these appeals and accordingly--reject the same with costs. The costs will be assessed only in one appeal but will he distributed equally in all the eight cases.